In this section

I. Introduction

This Technical Information Release (TIR) explains changes to the personal income tax calculation, income tax withholding, and income reporting rules with respect to wagering income that are contained in Chapter 10 of the Acts of 2015 (the 2015 Act).[1] In general, these changes:

allow a deduction for losses from wagering transactions incurred at a gaming establishment licensed under G.L. c. 23K or a "racing meeting licensee or simulcasting licensee"[2], for purposes of calculating Part B taxable income under the Massachusetts personal income tax laws, but only to the extent of winnings from such establishments;

adopt new income tax withholding and reporting requirements for certain gambling income; and

increase the dollar threshold at which a gaming establishment governed by G.L. c. 23K is required to check winnings against outstanding child support obligations or outstanding tax liabilities.

These changes do not affect income calculation, withholding, or reporting rules for lottery winnings, including winnings from the Massachusetts state lottery.

II. Background

An Act Establishing Expanded Gaming in the Commonwealth[3] (the Expanded Gaming Act), effective November 22, 2011, added new G.L. c. 23K to the General Laws, which provides for expanded gaming in Massachusetts under the jurisdiction of the Massachusetts Gaming Commission. The Expanded Gaming Act authorized the Massachusetts Gaming Commission to license one casino in each of three regions in the state, and a single slots parlor. In addition, the Massachusetts Gaming Commission assumed all regulatory duties and responsibilities for the state’s horse racing industry. The Expanded Gaming Act amended various tax statutes with regard to wagering activity, including the General Laws relating to Massachusetts personal income tax and withholding, G.L. cc. 62 and 62B.

A second statutory change, the 2015 Act, effective March 31, 2015, has now further amended the personal income tax and withholding statutes by modifying the income calculation rules regarding winnings and losses from specified wagering activities and by adopting new withholding and reporting thresholds for different types of wagering. This TIR sets forth the statutory changes included in the 2015 Act.

III. Discussion

A. Income Tax Calculation Rules Relating to Gambling Income

Full Amount of Gambling Winnings Included in Massachusetts Gross Income

For purposes of the personal income tax, Massachusetts gross income is federal gross income as defined under the IRC of January 1, 2005, with certain modifications not relevant here. G.L. c. 62, § 2(a). Federal gross income is all income from whatever source derived, except from those sources specifically excluded by the IRC. IRC § 61. Federal gross income includes winnings from all types of gambling including, without limitation, the Massachusetts Lottery and other lotteries, casino and slot parlor gaming, charitable gaming (e.g., bingo, beano raffles, dogs and horse track betting (live or simulcast)) and any other type of gambling. A Massachusetts resident must include in Massachusetts gross income any lottery and wagering winnings includible in federal gross income, whether the winnings are from gambling in Massachusetts or in another state or jurisdiction. For Massachusetts tax purposes, lottery and wagering income are Part B income taxed at the applicable rate for the calendar year.

A nonresident must include in Massachusetts gross income items of gross income that arise from Massachusetts sources. Items of gross income from sources within the commonwealth include items of gross income derived from or effectively connected with the participation in any lottery or wagering transaction within the commonwealth, including gaming winnings acquired at or through a gaming establishment licensed under chapter 23K. A nonresident must include in Massachusetts gross income any Massachusetts lottery winnings, wagering winnings from a casino or slot parlor located in Massachusetts, winnings from a multijurisdictional lottery if the winning ticket was purchased within Massachusetts, winnings from pari-mutuel wagering paid by a Massachusetts racetrack or simulcast center and winnings from any other wagering transaction within Massachusetts.

Taxpayers are required to report the full amount of their winnings as gross income on their tax returns, without any reduction for gambling losses. In other words, taxpayers may not offset their gambling winnings with gambling losses and report the difference as gross income, notwithstanding that a deduction for certain gambling losses may be permitted as described below.

New Massachusetts Deduction for Gambling Losses

For federal income tax purposes, gambling losses may be deducted from federal adjusted gross income to the extent of gambling winnings if the taxpayer itemizes his or her deductions. IRC § 165(d). Massachusetts does not adopt the federal deduction for gambling losses under IRC § 165(d). Under § 12 of the 2015 Act, however, Massachusetts has adopted a new deduction from Part B income, allowing a deduction for

[l]osses from wagering transactions, that were incurred at a gaming establishment licensed in accordance with chapter 23K or a racing meeting licensee or simulcasting licensee, only to the extent of the gains from such transactions.

G.L. c. 62, § 3(B)(a)(18). The new provision allows taxpayers a deduction from Massachusetts adjusted gross income for wagering losses incurred at a gaming establishment licensed under G.L. c. 23K or a racing meeting licensee or simulcasting licensee, but only to the extent of and not to exceed the amount of winnings from such establishments that are included in Massachusetts gross income on the return. Under the new provision:

A taxpayer may claim a deduction for gambling losses incurred in a calendar year only if the losses were incurred at any gaming establishment licensed in accordance with chapter 23K or a racing meeting licensee or simulcasting licensee and only if the taxpayer had wagering winnings from any such gaming establishment licensed in accordance with chapter 23K or a racing meeting licensee or simulcasting licensee in the same calendar year. The deduction allowed for such losses may not exceed the amount of such winnings included in gross income for the calendar year.

Because Massachusetts does not adopt the deductions under IRC § 165(d), the deduction for gambling losses set forth in G.L. c. 62, § 3(B)(a)(18) is the only deduction for gambling losses allowed a Massachusetts taxpayer, unless the gambling activities of the taxpayer constitute a trade or business.[4] The new deduction is effective for taxable years beginning on or after January 1, 2015.

Taxpayers’ Accounting and Record Keeping for Gambling Winnings and Losses

Massachusetts will follow federal rules and guidance with regards to accounting for gambling winnings and losses. Under that guidance, whether a taxpayer has gambling winnings or gambling losses is determined per occasion. See CCM AM2008-011. In keeping with federal standards, Massachusetts will require taxpayers to keep accurate records showing their winnings or losses for each occasion separately. See Rev. Proc. 77-29, 1977-2 CB 538. As noted above, taxpayers are required to include in gross income on their tax returns the full amount of their winnings for the year, and may not offset their gambling winnings with gambling losses and include in gross income only the difference. Taxpayers may claim a deduction for gambling losses for Massachusetts purposes only as set forth in G.L. c. 62, § 3(B)(a)(18).

4. Examples

Example 1:

For calendar year 2015, taxpayer, a Massachusetts resident, has:
gambling winnings of $500 from Massachusetts state lottery,
gambling winnings of $800 from a casino licensed under chapter 23K,
gambling winnings of $1200 from a Las Vegas casino,
gambling losses of $1600 from a Las Vegas casino,
gambling losses of $510 from Massachusetts Lottery scratch tickets, and
gambling losses of $1000 from a casino licensed under chapter 23K.

For Massachusetts income tax purposes, the taxpayer must include all $2500 of its gambling winnings in Massachusetts gross income. The taxpayer may claim a deduction for gambling losses from a casino licensed under chapter 23K but only to the extent of winnings from a casino licensed under chapter 23K. No deduction is available for the taxpayer’s gambling losses from other sources. The taxpayer had winnings of $800 and losses of $1,000 from a casino licensed under chapter 23K. Thus, the taxpayer may claim a deduction of $800. The remaining $200 of loss from the casino licensed under chapter 23K may not be deducted.

Example 1a:

Same facts as Example 1, except taxpayer is a nonresident.

For Massachusetts income tax purposes, a nonresident taxpayer must include in Massachusetts gross income gambling winning from Massachusetts sources, which winnings total $1300. The taxpayer may claim a deduction for gambling losses from a casino licensed under chapter 23K but only to the extent of winnings from a casino licensed under chapter 23K. No deduction is available for the taxpayer’s gambling losses from other sources. The taxpayer had winnings of $800 and losses of $1,000 from a casino licensed under chapter 23K. Thus, the taxpayer may claim a deduction of $800. The remaining $200 of loss from the casino licensed under chapter 23K may not be deducted.

Example 2:

For calendar year 2015, taxpayer, a Massachusetts resident, has:
gambling winnings of $500 from Massachusetts state lottery,
gambling winnings of $800 from a casino licensed under chapter 23K,
gambling winnings of $1200 from a Las Vegas casino,
gambling losses of $1600 from a Las Vegas casino, and
gambling losses of $510 from Massachusetts Lottery scratch tickets.

For Massachusetts income tax purposes, the taxpayer must include all $2500 of its gambling winnings in Massachusetts gross income. Since none of the taxpayer’s gambling losses were incurred at a casino licensed under chapter 23K and no deduction is available for the taxpayer’s gambling losses from other sources, the taxpayer may claim no deduction for gambling losses.

Example 3:

For calendar year 2015, taxpayer, a Massachusetts resident, has:
gambling winnings of $500 from Massachusetts state lottery,
gambling winnings of $1200 from a Las Vegas casino,
gambling losses of $1600 from a Las Vegas casino,
gambling losses of $510 from Massachusetts Lottery scratch tickets, and
gambling losses of $1000 from a casino licensed under chapter 23K.

For Massachusetts income tax purposes, the taxpayer must include all $1700 of its gambling winnings in Massachusetts gross income. Because the taxpayer does not have any winnings from a casino licensed under chapter 23K, the taxpayer may claim no deduction for its gambling losses incurred at a casino licensed under chapter 23K. No deduction is available for the taxpayer’s gambling losses from other sources.

B. Withholding and Reporting Rules Relating to Gambling Income

The Expanded Gaming Act established thresholds for personal income tax withholding that have now been amended by the 2015 Act. Under G.L. c. 62B, § 2, as revised, Massachusetts withholding on specified gambling winnings, with the exception of withholding on lottery winnings, is generally aligned with the federal withholding requirements under IRC § 3402.[5]

The 2015 Act amended the prior withholding rules in G.L. c. 62B, § 2 applicable to gambling income in two ways. First, it amended the provisions of the seventh paragraph of that section as indicated below. Second, it added a new paragraph eight, which is set out subsequently.

Paragraph 7, first sentence:

Every person, including the United States, the commonwealth or any other state, or any political subdivision or instrumentality of the foregoing, making any payment of lottery or wagering winnings which are subject to tax under chapter 62 and which are subject to withholding under section 3402 of the Internal Revenue Code, without the exception for slot machines, keno and bingo played at licensed casinos in subsections (q)(5) and (r) of said section 3402 of the Internal Revenue Code, shall deduct and withhold from such payment an amount equal to 5 per cent of such payment, except that such withholding for purposes of this chapter shall apply to payments of winnings of $600 or greater notwithstanding any contrary provision of the Internal Revenue Code.

The 2015 Act removed from the statute the words shown in strike-out font in the quoted paragraph. The deletions limit the application of paragraph 7 to lottery winnings. Under the amended language, lottery winnings of $600 or more continue to be subject to Massachusetts personal income tax withholding.

Paragraph 8:

A person at a gaming establishment licensed in accordance with G.L. c. 23K making a payment of winnings of $1,200 or more from slot machine play shall file a form W-2G with respect to such payment. A person making a payment of winnings of $600 or more from pari-mutuel wagering shall file a form W-2G with respect to such payment if the proceeds are at least 300 times as large as the amount wagered. For purposes of this section, in determining whether winnings equal or exceed the $1,200 or $600 amounts, the amount of winnings shall not be reduced by the amount wagered. A person making a payment of winnings from wagering at a gaming establishment or from pari-mutuel wagering which are subject to tax under chapter 62 and subject to withholding under section 3402 of the Internal Revenue Code shall deduct and withhold an amount equal to 5 percent of such payment. A person who is to receive a payment of winnings which are subject to withholding shall furnish the person making such payment a statement, made under the penalties of perjury, containing the name, address, and taxpayer identification number of the person receiving the payment and of each person entitled to any portion of that payment. Notwithstanding any general or special law to the contrary, any review or transmission of information required to be done by a gaming licensee relative to the disbursement of cash or prize winnings shall be administered consistent with this paragraph and based upon real-time information.[6]

New paragraph 8 added by the 2015 Act, quoted above, addresses both income tax withholding and reporting requirements with respect to licensed gaming establishments and pari-mutuel wagering. Withholding is required for taxable winnings under G.L. c. 62B only if the payment of winnings is subject to federal withholding under IRC § 3402. The withholding rate is 5 percent. Reporting is required for slot machine winnings of $1,200 or more and pari-mutuel winnings of $600 or more, provided that the proceeds from the pari-mutuel wagering are at least 300 times the amount wagered. The 2015 Act does not establish reporting requirements for wagering winnings other than those from slot machines or pari-mutuel wagering, such as table games, keno, or bingo played at a licensed casino.

Withholding. Neither the Expanded Gaming Act nor the 2015 Act changed the treatment of lottery winnings, including winnings from the Massachusetts State Lottery. For winnings of $600 or more, the Massachusetts State Lottery is required to deduct and withhold an amount equal to 5 percent of the payment made to any winner, regardless of residency.[7] If the proceeds from the wager are winnings subject to Massachusetts withholding, then the total proceeds from the wager, and not merely the amounts in excess of $600, are subject to withholding. See Treas. Reg. § 31.3401(q)-1(b).

Reporting. Reporting on Form W-2G is required on lottery winnings of $600 or more.

2. Slot Machines at Gaming Establishments Licensed under G.L. c. 23K

Withholding. Under revised G.L. c. 62B, § 2, withholding on slot machine winnings is required if the winnings are subject to federal withholding under IRC § 3402. For federal purposes, withholding under IRC § 3402(q)(5) generally is not required as to winnings derived from slot machines,[8] and as a result of changes made by the 2015 Act, Massachusetts now follows this treatment for winnings at a gaming establishment governed by G.L. c. 23K.[9]

Reporting. Slot machine winnings of $1,200 or more must be reported on Form W-2G. G.L. c. 62B, § 2, ¶ 8. The amount wagered is not subtracted from the winnings in determining whether the $1,200 threshold has been met. Id. The Massachusetts reporting requirement is now the same as the federal reporting requirement.[10]

3. Table Games at a Gaming Establishments Licensed under G.L. c. 23K

Withholding. Under the revised G.L. c. 62B, § 2, withholding on table game winnings (including, for example, winnings from blackjack, baccarat, craps, roulette, and the big-6 wheel) is required if the payment is subject to federal withholding under IRC § 3402. For federal purposes, under the general rule for withholding on wagering winnings, proceeds of more than $5,000 from a wagering transaction are subject to withholding if the amount of such proceeds is at least 300 times the amount wagered.[11] Massachusetts follows this withholding threshold with regard to table games at a gaming establishment licensed under G.L. c. 23K. G.L. c. 62B, § 2, ¶ 8. If the proceeds from the wager are winnings subject to Massachusetts withholding, then the total proceeds from the wager, and not merely the amounts in excess of $5,000, are subject to withholding.

Reporting. If withholding is required, the payer of winnings must report the amount paid on Form W-2G.[12]

4. Pari-mutuel Wagering (Horse and Dog Racing)

Withholding. Under the revised G.L. c. 62B, § 2, withholding on winnings from pari-mutuel wagering at any racing meeting licensee or simulcasting licensee is required if the payment is subject to federal withholding under IRC § 3402. Under IRC § 3402(q)(3)(C)(ii), a payment of winnings of $5,000 or greater from horse or dog racing (including winnings from simulcast horse or dog racing) is subject to withholding, but only if the winnings are at least 300 times as large as the amount that was wagered.[13] If the proceeds from the wager are winnings subject to Massachusetts withholding, then the total proceeds from the wager, and not merely the amounts in excess of $5000, are subject to withholding. See Treas. Reg. § 31.3401(q)-1(b).

Reporting. Pari-mutuel wagering winnings of $600 or more, not reduced by the amount wagered, must be reported if the proceeds are at least 300 times as large as the amount wagered.[14] The person making the payment of winnings must file a Form W-2G if the reporting threshold has been met.

5. Keno and Bingo Played at a Gaming Establishment Licensed under G.L. c. 23K

Withholding. Under the revised G.L. c. 62B, § 2, withholding on winnings from keno and bingo at a gaming establishment licensed under G.L. c. 23K is required if the payment is subject to federal withholding under IRC § 3402. G.L. c. 62B, § 2, ¶ 8. For federal purposes, these forms of wagering generally are exempt from withholding under IRC § 3402(q)(5).[15] Accordingly, keno and bingo winnings from a gaming establishment licensed under G.L. c. 23K are not subject to Massachusetts tax withholding. The reference to keno and bingo in paragraph 7 of G.L. c. 62B, § 2 is limited to payment of lottery winnings.

Reporting. No reporting is required for winnings from keno and bingo played at a gaming establishment licensed under G.L. c. 23K.[16]

6. Winnings of Nonresident Aliens

Withholding. Massachusetts generally follows the federal withholding rules that apply to the gambling winnings of nonresident aliens. IRC § 3402(q), which requires withholding on certain gambling winnings, references IRC § 1441(a) for the withholding treatment of nonresident aliens.[17] Under IRC § 1441(a), withholding of 30 percent is generally required on the payment of U.S. source income, including gambling income,[18] to nonresident aliens. There are exceptions to the general rule. Winnings paid to a nonresident alien from blackjack, baccarat, craps, roulette, or big-6 wheel are not subject to federal withholding.[19] Further, the U.S. wagering winnings of residents of certain countries are exempt from U.S. taxation by treaty.[20]

If federal withholding is required at any rate, Massachusetts withholding at 5 percent is also required.[21]

Reporting. If withholding is required, the payer of winnings must report the amount paid.[22]

D. Offset of Winnings for Tax and Child Support Debts

Section 51 of G.L. c. 23K requires that, prior to the disbursement of a cash or prize in excess of $600, a gaming licensee first check information provided by DOR and the IV-D Agency (i.e. DOR Child Support) to determine if the recipient owes unpaid amounts of tax or child support obligations. To the extent any such obligations exist, the gaming licensee must first disburse to the IV-D Agency and/or the DOR the full amount of the cash or prize or such portion of the cash or prize that satisfies the winner's past-due child support obligation and/or tax liability. Section 51 has not been amended by the 2015 Act. However, G.L. c. 62B, § 2, as amended by the 2015 Act, contains the following new language:

Notwithstanding any general or special law to the contrary, any review or transmission of information required to be done by a gaming licensee relative to the disbursement of cash or prize winnings shall be administered consistent with this paragraph and based upon real-time information.

As a result of this amendment, the dollar threshold at which a gaming licensee must check winnings against tax or child support debts pursuant to G.L. c. 23K, § 51, has been increased to the dollar level at which reporting is required under G.L. c. 62B, § 2, for the applicable type of gaming, as described in this TIR. For slot machine winnings, the revised level is $1200, which is not reduced by the amount wagered.

E. Other Reporting Requirements

In addition to the reporting of winnings under G.L. c. 62B, § 2, reporting requirements may apply under other provisions of the General Laws. In particular:

Every person or entity doing business in the Commonwealth who makes payments which are taxable to the recipient under G.L. c. 62, the personal income tax, must file an annual report with the Commissioner: (1) giving the names and addresses of all residents of Massachusetts and other persons deriving income in Massachusetts to whom it has paid any income subject to the personal income tax during the preceding calendar year on the same basis as is required by the federal government under the IRC, and (2) stating in such report the amount of such income so paid by it to each person. [23]

Under the 2015 Act, this reporting is required even where the payment is not subject to federal taxation or withholding under the IRC.[24] Thus, a person making payments of winnings subject to the Massachusetts personal income tax or withholding is required to file an information return in Massachusetts even if the winnings are not subject to federal income tax or withholding.

2. Beano Winnings, G.L. c. 62C, § 18

G.L. c. 10, § 38 provides for the licensing of certain organizations to conduct beano games, raffles or bazaars. The 2015 Act does not change the requirement under G.L. c. 62C, § 18 that every organization operating or conducting a game under G.L. c. 10, § 38 must, within ten days after such game is held, file an information return with the Commissioner containing the names and addresses of all persons receiving prizes over $500 in such game and the amount of every such prize.

/s/Mark E. Nunnelly
Mark E. Nunnelly
Commissioner of Revenue

MEN:RHF:lbr

November 20, 2015

TIR 15-14

[1] St. 2015, c. 10, §§ 12 -14.

[2] “Racing meeting licensee or simulcast licensee” refers to a person licensed by the Massachusetts Gaming Commission to conduct live or to simulcast horse or dog races where any form of betting or wagering on the speed or ability of horses and dogs shall be permitted.

[3] St. 2011, c. 194.

[4] See DOR Directive 03-3.

[5] IRC § 3402(q)(3) defines the term “winnings which are subject to withholding” to mean proceeds from a wager determined in accordance with the following:

(A) In general. — Except as provided in subparagraphs (B) and (C), proceeds of more than $5,000 from a wagering transaction, if the amount of such proceeds is at least 300 times as large as the amount wagered.

(B) State-conducted lotteries.— Proceeds of more than $5,000 from a wager placed in a lottery conducted by an agency of a State acting under authority of State law, but only if such wager is placed with the State agency conducting such lottery, or with its authorized employees or agents.

[7] Withholding applies to a winning ticket of $600 or more even if several individuals jointly own the ticket and each person’s “share” is less than $600. If winnings are to be split among several winners, winners are reported on Form 5754, Statement by Person(s) Receiving Gambling Winnings.

[8] IRC § 3402(q)(5) provides that the general withholding rule does not apply to winnings from a slot machine, keno, or bingo. Federal backup withholding is required under IRC § 3406 and Treas. Reg. § 7.6041-1 if the player fails to give a tax identification number.

[9] Prior to the 2015 Act, paragraph 7 of the Massachusetts withholding statute specifically disallowed the federal exception for withholding on slot machines. No such exception remains in the revised statute.

[10] Treas. Reg. § 7.6041-1.

[11] IRC § 3402(q)(3)(A).

[12] G.L. c. 62B, § 2 (paragraph 8); see also G.L. c. 62B, § 5.

[13] The Massachusetts Gaming Commission regulates simulcasting for horse racing, harness racing, and dog racing. Effective January 1, 2010, dog racing in Massachusetts is prohibited. See G.L. c. 128A, § 14E. However, under the regulation of the Massachusetts Gaming Commission, simulcasting in Massachusetts of dog racing taking place outside of Massachusetts is permitted.

[14] G.L. c. 62B, § 2 (paragraph 8).

[15] IRC § 3402(q)(5) provides that the general withholding rule does not apply to winnings from a slot machine, keno, or bingo. Federal backup withholding is required under IRC § 3406 and Treas. Reg. § 7.6041-1 if the player fails to give a tax identification number.

[16] G.L. c. 62B, § 2; IRC § 3402(q)(5).

[17] IRC § 3402(q)(2).

[18] Note that winnings from legal wagers initiated outside the U.S. in a pari-mutuel pool with respect to a live horse or dog race in the U.S. are excluded from federal gross income. IRC § 872(b)(5).

[19] IRC § 871(j).

[20] Gambling income of residents (as defined by treaty) of the following foreign countries is, at the time of this writing, not taxable by the U.S.: Austria, Belgium, Bulgaria, Czech Republic, Denmark, Finland, France, Germany, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg, Netherlands, Russia, Slovak Republic, Slovenia, South Africa, Spain, Sweden, Tunisia, Turkey, Ukraine, and the United Kingdom. Gambling income of residents of Malta is taxed at 10 percent. See Internal Revenue Service Publication 515 for a current list of countries that have treaties with the U.S. regarding the taxation of gambling income.

[21] G.L. c. 62B, § 2, ¶ 8.

[22] G.L. c. 62B, §§ 2, 5.

[23] G.L. c. 62C, § 8. See also DOR Directives 93-5, 94-10, and 97-3 which set out the reporting requirements for filing annual information reports.